National Post editorial board: Don't give up on Senate reform

After Friday’s unanimous Supreme Court ruling on Senate reform, true believers in an equal, effective and elected Upper Chamber must wish Stephen Harper had asked the Court’s opinion as his first prime ministerial act. It wouldn’t have made reform any less difficult. But at least we wouldn’t have spent the last eight years debating a fantasy.

As just about everyone except Mr. Harper and his ministers expected, the Court ruled that abolishing the Senate outright would require unanimous consent of the provinces; and that imposing term limits for Senators or instituting consultative elections for nominees would require the agreement of seven provinces representing 50% of the Canadian population. Term limits and elections would fundamentally alter the democratic character the framers of the Constitution intended the Senate to have, the Court ruled.

That retroactively smacked down Conservative bills S-4 (2006), under which Parliament would have unilaterally instituted renewable eight-year terms for Senators; Bill C-20 (2007), under which Parliament would have unilaterally established consultative elections for Senate “nominees”; and Bill C-7 (2011), under which Parliament would have unilaterally instituted non-renewable nine-year terms for Senators and consultative elections.

On imposing term limits, the government at least had a semi-plausible precedent to cite: Parliament imposed a mandatory retirement age (75) for senators without having to summon the premiers. In fact, while it rejected eight or nine year limits as too short, the Court suggested there might be some term limit long enough that Parliament could impose it unilaterally — though it unhelpfully declined to say how long a fixed term.

But the government’s argument that consultative elections didn’t alter the nature of the Senate because the prime minister could still theoretically reject the appointees was, frankly, disingenuous. As the Court wrote, “it reduces the notion of constitutional amendment to a matter of whether or not the letter of the constitutional text is modified.” It’s obvious that imbuing Senators with a democratic mandate — much as one might approve of the idea — would alter “the Senate’s fundamental nature and role as a complementary legislative body of sober second thought.”

Indeed, changing the Senate’s fundamental nature is the whole point of reforming it. It spoke volumes of the government’s reform ambitions and priorities, surely, that its lawyers were reduced to arguing it wasn’t doing anything worth worrying about.

On Friday, Mr. Harper seemed almost to throw in the towel

In any event, the matter is finally settled. Even the modest (if not token) reforms the Conservatives tabled would require constitutional wrangling. And on Friday, Mr. Harper seemed almost to throw in the towel, paraphrasing the Court as saying “we’re essentially stuck with the status quo” and talking down the idea of “a bunch of constitutional negotiations.”

This is needlessly defeatist. We are not stuck with the status quo. We are simply faced with the same challenges we always were. Establishing an equal, elected and effective Senate was never supposed to be particularly easy. It just seems unthinkable now, in the post-Meech Lake, post-Charlottetown era, when we treat the constitution like a nuclear fallout zone. That era will not last forever.

A referendum on Senate reform could at least get Canadians’ opinions on the record, making obstructionist premiers’ chairs a little warmer. But the reality is that structural, permanent Senate reform is probably a long way off. In the meantime, there is more we can do than simply hope the Red Chamber simmers back down into its usual state of plodding, mostly ignored mediocrity.

First and foremost, the Senate must get its own house in order with regards to accountability, spending rules and oversight. No more Mike Duffys, no more Mac Harbs. Liberal leader Justin Trudeau’s proposal for some kind of appointments commission, which would recommend highly qualified candidates for appointment by the prime minister — along the lines of the House of Lords Appointments Commission in Westminster — deserves consideration.

But let’s face it: prime ministers don’t appoint hacks, donors, bagmen, failed candidates and television personalities who don’t actually live in Prince Edward Island by accident. They have the wherewithal, all on their own, to decide who might be truly qualified to provide the House of Commons with sober second thought. If Mr. Harper really wants a better Senate, he can start doing that today simply by making better appointments, thus setting the bar higher for his successor. Equal and elected are a long way off; but on effective, we can start making progress immediately.

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